Steen v Senton

This matter came before the New South Wales Court of Appeal, constituted by Refshauge, Penfold and Rangiah JJ, on appeal from a decision of a Master. The dispute concerned the apportionment of liability for a motor vehicle accident and the calculation of damages awarded to the respondent, Mr. Senton, who was a pedestrian involved in the collision with the appellant, Mr. Steen, who was the driver.

The Court was required to determine whether the Master had erred in applying the principles of contributory negligence under sections 5R and 5B of the *Civil Liability Act 2002* (NSW), and whether these provisions mandated a departure from the common law position regarding the standard of care owed by drivers and pedestrians. Additionally, the Court had to consider whether the Master had made errors in calculating the respondent's life expectancy and the allowance for commercial care, particularly in light of inconsistencies in the Master's findings and the speculative nature of the care allowance. The Court also considered whether to permit a new argument to be raised on appeal, which relied on intermediate appellate court decisions delivered after the trial and which was potentially dispositive of the appeal.

The Court held that sections 5R and 5B of the *Civil Liability Act 2002* (NSW) required both the driver and the pedestrian to be held to the same standard of care, meaning they were equally responsible for the collision. Consequently, the Court varied the Master's judgment to assess the contributory negligence of Mr. Senton at 50%, thereby reducing the damages payable by that percentage. The Court also found that the Master had erred in calculating the allowance for commercial care while Mr. Senton was in an aged care facility, deeming it too speculative. The Court therefore ordered that this portion of the damages be recalculated. The appeal was upheld in part, with the parties directed to provide a calculation for the aged care facility costs. There was no order as to the costs of the appeal.